The Alien Enemies Act (AEA) has been invoked before in US history. While no direct precedent exists for using the AEA against cartel-affiliated foreign nationals, it is easy cite the historical use of the AEA against nationals of enemy countries and the broad statutory language to support a novel application. Thus the US District court in Texas ruling against Trump’s deployment of the AEA in combating foreign terrorism in the United States is not merely suspicious but is yet another data point confirming the pattern of judicial weaponization we have witnessed unfolding over the last several years.
The federal judge in this case is Texas is US District Judge Fernando Rodriguez Jr., a Trump appointee (which the media relishes noting). In his ruling, Rodriguez determined that the administration’s invocation of the act was unlawful in this context. He stated that the statute applies only during times of declared war or actual invasions by foreign nations, and that the activities of Tren de Aragua did not meet these criteria. We thus have another universal injunction (this one permanent), setting a significant precedent (at least for now) for how the statute may be applied in modern contexts.
Rodriguez was recommended to President Donald Trump during his first term by Senator John Cornyn. Rodriguez was nominated in 2017 and confirmed the following year. In praising Rodriguez, Cornyn cited his work in combating human trafficking (Rodriguez served as a field office director for International Justice Mission in the Dominican Republic focusing on rescuing victims of child sex trafficking). As you read this essay, keep that in mind and ask yourself whether it’s odd for somebody praised for combating human trafficking to rule in a manner that makes it more difficult to remove human traffickers from US territory.
In his ruling against Trump’s deployment of the AEA, Rodriguez notes other tools the administration can use to remove aliens from American territories. But those other tools will hamper actions necessitated by an emergency situation—the threat posed by criminal aliens designated as terrorists, who were allowed alongside millions of other aliens to flood the country under the previous administration for purposes of distorting the Census, gaining electoral advantage, and advancing the transnationalist agenda.
Elite machinations to one side, the judge’s ruling is fundamentally wrong for basic reasons of law. The legal basis for invoking the AEA is sound. It’s the position of administration that the statute provides sufficient authority, when interpreted considering contemporary national security concerns, to support executive action against foreign nationals who present a clear threat to public safety and national sovereignty through organized criminal activity that is, in any adequate interpretation of intentionality, perpetrated by the Venezuelan state, an enemy of the United States.
The AEA states, in relevant part (I italicize critical clause): “Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies…”
Let’s unpack this. The provision, originally enacted in 1798, today codified at 50 USC § 21, empowers the President to take specific actions against nationals of a foreign adversary, contingent upon the following: the occurrence of war, invasion, or a predatory incursion; a Presidential proclamation of the event; the individual being a non-naturalized national of the hostile nation; and the action being taken for the public safety.
What is Tren de Aragua? It’s a Venezuelan-based transnational criminal organization involved in drug smuggling, extortion, human trafficking, and violent crime. The group has significantly expanded its operations into multiple US jurisdictions. According to federal law enforcement sources, individuals affiliated with Tren de Aragua have entered the United States unlawfully and have been implicated in activities that threaten public order. Nobody could reasonably deny that this is the case.
Don’t expect terrorists to wear military uniforms. While not a formal military force, Tren de Aragua represents a hostile and organized foreign threat. The statute’s use of the phrase “predatory incursion” is intentionally broad and encompasses non-military but coordinated actions that endanger US territorial integrity and the safety of its residents. The group’s actions may reasonably be classified under this term. The Wilson Administration used the act detain and restrict German nationals inside the US. The Roosevelt Administration) used the act detain German, Italian, and Japanese nationals. Those arrested, detained, and deported by Wilson and Roosevelt were for the most part not in military uniforms or part of the armed forces of the relevant enemy nations.
Although Tren de Aragua is a nonstate actor, its origin and national base of operations in Venezuela is critical—just as in the cases of Germany, Italy, and Japan. The Venezuelan government has demonstrated a persistent incapacity, or (charitably) unwillingness to suppress the organization, and credible intelligence indicates possible tolerance or complicity by elements of the Maduro regime. It expresses an extreme naivete to demand that Trump wait for confirmation of this. Indeed, confirmation of the intelligence reports is highly unlikely to be forthcoming. To protect the American people and the sovereignty of their nation, Trump must act based on what is likely.
I teach this in every one of my criminal justice courses. Intentionality in criminal and other law isn’t limited to purposeful harm—it includes knowing actions, extreme carelessness, and reckless behavior that a reasonable actor would have avoided. Intentionality in criminal (and other) law refers to the mental state, or mens rea, behind a person’s actions. While many assume that only purposeful actions count as intentional, the law recognizes a broader range of mental states that can fulfill this requirement, including purpose (the actor wanted the outcome to occur), knowledge (the actor was aware that his conduct is likely to result in a particular outcome), recklessness (the actor disregarded substantial and unjustifiable risk but proceeded with the action anyway), and criminal negligence (an actor failed to be aware of a substantial and unjustifiable risk, but should have been).
More than one of these criterions—all, in my view—are present in this situation. This makes Venezuela a de facto hostile nation in this context, insofar as it enables or permits incursions into US territory through its nationals, particularly those affiliated with criminal syndicates. Thus, Venezuelan nationals associated with this threat fall within the statutory definition of “natives, citizens, denizens, or subjects of the hostile nation.”
The act requires a public proclamation by the President, who is the chief executive of the federal government, which includes his roles as commander-in-chief and chief magistrate, acknowledging the incursion. The President oversees foreign policy and is charged with the duty to defend the sovereignty of the American Republic and its citizens. This procedural prerequisite vests the President with full authority under the statute as empowered by the Constitution. Upon issuance of such a proclamation, executive agencies may proceed with the following: designating the affected individuals as alien enemies; imposing appropriate restraints (such as arrest and detention); conditioning their continued residence upon specific security guarantees; and ordering their removal if they refuse to depart voluntarily.
Crucially, such a proclamation need not declare war or identify conventional military aggression but merely recognize that a hostile foreign threat has penetrated US borders in a manner consistent with the statutory language. The statute explicitly allows action “for the public safety,” underscoring that its scope includes not only wartime detentions but responses to modern asymmetric threats. The criminal activities of Tren de Aragua represent a coordinated incursion, with Venezuelan nationals serving as active agents of disruption inside the borders of the United States. The facts in this case fulfill both the letter and the spirit of the AEA.
Judge Rodriguez knows this and is willfully interfering with the Article II powers of the President of the United States. His ruling is connected to a concerted effort by the federal judiciary to usurp the authority of the Executive Branch, grabbing power that was never intended for the Judicial Branch by the Constitution. Article III is subordinate to Article I, which gives Congress control over the judiciary save the Supreme Court, but even here determining who sits on that court, as well as Article II, which gives the President the authority to administer the laws Congress passes and to nominate members of the federal judiciary. The priority of Article I and Article II has a very clear basis: the establishment of a democratic republic that represents the will of the People, i.e., citizens.
A democratic republic puts citizens central to its concerns. It is citizenship that comes with the immunities and privileges identified in the Constitution and its Bill of Rights. If you are a legal resident, you enjoy limited immunities and privileges, which is why, for example, legal residents who are noncitizens cannot vote. If you are illegally present in US territory, then you enjoy few immunities and privileges. The public is hearing a lot about due process these days, but determining whether a person is illegally in the United States is a straightforward manner. Is the person a citizen or a legal resident? No? Then promptly detain and deport. A protective order by a rouge court is not a valid reason for hesitation.
Judicocracy is not part of our constitutional scheme. On the contrary, the judiciary has a limited role in determining the fate of the nation. Federal courts are being weaponized against the citizens of the republic by those attempting to limit Executive authority to further an agenda: the managed decline of the American Republic, preparing its people for full incorporation in a transnational system run by global capitalists and financiers. We are in a struggle for our survival. Trump and the agencies under his authority need to take this threat seriously and act boldly. So does Congress.
The President takes an oath when he is sworn into office: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Did you think the phrase “against all enemies, foreign and domestic” was in there? So did I. But don’t worry, members of the House and Senate, federal judges, military officers and enlisted personnel, and civil service and executive agency employees take a similar oath but with a crucial difference:
“I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
So where is Congress? Where is the bold and swift action from the body that establishes and oversees the federal judiciary? To be sure, the heads of the various executive agencies may also act against our domestic enemies, and thus this responsibility is baked into the President’s authority. But Congress can abolish and reign in these rogue courts. Why aren’t they? If only to lend more legitimacy to the administration trying to protect the public interest. This is suspicious. Call your elected representatives and ask them why they aren’t acting. Then primary them if they don’t move.
freedom and reason 